COMPLAINT ABOUT DEFECTIVE PRODUCT
2. The case is at the stage of the arguments. I have heard the arguments of learned counsel for the parties and perused the file in the light of the arguments. Now. I proceed to dispose off the complaint by discussion in the following paragraphs.
3. The grievance of the claimant is to the effect the LCD purchased by him from the shop of the defendants for Rs.4,800/- on 30-10-2011 and got repaired on 13-11-2011 for Rs.300/- has become defective and non repairable despite the oral warranty for proper working for 6 months but the grievance has not been redressed despite issuance of legal notice dated 19-12-2011 as mentioned in response of legal notice dated 03-1-2012. The claimant has requested for alternate remedies about replacement of defective LCD with new LCD or return of price and return of repair charges amounting to Rs.5,100/- and also requested for the grant of Rs.50,000/- as damages and Rs.10,000/- as litigation charges.
4. The defendants have jointly contested the complaint by filing their joint written statement and by raising certain preliminary objections and denied the alleged warranty and explained the cause of defect of the disputed LCD and requested for dismissal of the complaint and grant of damages and costs.
5. It is pertinent to note that although evidence is necessary to be recorded under S.30 of PCP Act 2005 for disposal of the complaints by the Consumer Courts but since the procedural laws known as the Code of Civil Procedure, 1908; the Code of Criminal Procedure, 1898; the Qanun-e-Shahadat Order, 1984, the Bankers? Books Evidence Act, 1891; special rules of evidence u/s 118 of the Negotiable Instruments Act, 1881 are not strictly applicable to the proceedings of the Consumer Courts, as such the propriety demands that the regular evidence should not be recorded in such cases where the points for determination are mostly based on the copies of the admitted documents available in the file of the complaint or admitted in the pleadings just like the present case.
6. 1st objection raised by the defendants is to the effect that the complaint is time barred. I am of the view that if the present case is treated as having no warranty given for the disputed LCD screen, then 2nd proviso to S.28 PCP Act 2005 would apply according to which the period of limitation is to be extended up to one year from the purchase if no period of guarantee or warranty is fixed. Conversely if the present case is to be treated as based on warranty, then the period of limitation of thirty days extendable to sixty days is to start after the expiry of the period of warranty or guarantee.
7. It is pointed out that the difference between two eventualities is to the effect that the period of limitation fixed as one year is to be reckoned from the date of purchase if no warranty or guarantee is provided while said period is to be computed as thirty days extendable to sixty days from the date of the expiry of the period provided for the warranty or guarantee. It means that the date of purchase becomes immaterial when the period of warranty or guarantee is fixed. It also means that the date of expiry of the warranty or guarantee becomes operative to determine the period of limitation in such cases where the warranty or guarantee is in existence.
8. In the present case, the period of warranty is being alleged to be six months which has not yet expired therefore the complaint is within time but even if it is presumed that it is the case of no warranty or guarantee even then the period of limitation is to expire after one year of the purchase.
The complaint is therefore within time even according to said version. The objection about limitation is therefore misconceived and rejected.
9. 2nd objection raised by the defendants is to the effect that since there was no mention of the recovery of damages and litigation charges in the legal notice as such the claimant is said to be not entitled to claim the damages and litigation charges in the complaint which is to be based upon the legal notice. I have observed from the perusal of the copy of legal notice that although the request in the said notice is to the effect that "either the LCD should be replaced or Rs.4,800/- being price plus Rs.300/- being repair charges be repaid within 15 days failing which legal proceedings before Consumer Court would be initiated". I am of the view that since the contents of the notice are not described
10. 3rd objection raised by the defendants is to the effect that there is no warranty card issued on sale of the LCD. I have observed that the definition of the product' u/s 2 (j) of PCP Act 2005 has the same meaning as assigned to the word "goods" in the Sale of Goods Act 1930 as such the said Act is applicable to the cases before the Consumer Court.
11. It is provided by S.16 (1) of the Sale of Goods Act, 1930 that there is an implied condition that the goods shall be reasonably fit for such particular purpose for which the goods are required by the buyer specifically when the buyer relies on the seller's skill or judgment. It is therefore obvious that there is implied warranty of the LCD in question according to said law as such express warranty was not required to be given to make the defendants liable for the defect of the LCD in the capacity of the seller within the definition of the manufacturer u/s 2 (h) (v) of the Act.
12. I am also of the view that good-will and good repute of the shop from which the product is being purchased itself amounts to the implied warranty because the purchaser does not expect the sale of sub standard product from the shop of good repute. It is also observed that the period of warranty may not be fixed but the same is embodied and enshrined in such sale and purchase.
The complaint is therefore maintainable even in absence of express warranty. The objection is therefore rejected.
13. 4th objection raised by the defendants is to the effect that the notice was issued to one party while more than one party has been impleaded as the defendants making the case liable to be dismissed. I am of the view that the case is liable to be dismissed only to the extent of such defendant who was not given notice u/s 28 PCP Act, 2005 and cannot be dismissed as a whole due to the omission to give notice to any particular defendant.
14. It is however observed that in the present case the name was not mentioned in the notice and the same was issued in accordance with the designation of the Proprietor?. It is therefore necessary for the defendants to claim that they are not the proprietors of the disputed shop. Since they have not denied to be the proprietors and since it is not clarified in the joint written statement that which one of the defendant is the sole proprietor as such both the defendants qualify as the joint proprietors and they are covered by the legal notice issued to the proprietor. The objection is therefore rejected.
15. 5th objection raised by the defendants is to the effect that contradictory version has been adopted in the notice as compared with the complaint filed in the court. I have found by comparison that only the alleged visit of the claimant at the shop of the defendants on 10-11-2011 is not mentioned in the complaint while the remaining material facts are identical in the both therefore the omission to mention the said visit in the complaint is not fatal for the version of the claimant.
16. As far as the objection of the defendants is concerned, about the defect might have been caused due to improper use or due to fluctuation of electricity, I find that the LCD is admitted to be repaired after purchase from the defendants therefore the defendants are estopped by their conduct to raise this objection which is rejected.
17. As far as the request for grant of damages is concerned, it is observed that it is settled law that the manufacturer or service provider is not liable for any damages except a return of the consideration or a part thereof and the costs, specifically where the consumer has not suffered any damages from the product or provision of service except lack of utility/ benefit.
18. It is pertinent to note that the grant of damages is curtailed even under Contract Act, 1872 in which it is provided in S.73 to 75 that the damages should be proportionate to the loss and not excessive by mentioning that such compensation for loss or damage caused by breach of contract is not to be given for any remote and indirect loss or damage sustained by reason of the breach. It is an embargo placed by the general law of contracts upon the powers of the courts about grant of damages.
19. It is also observed that further embargo on the quantum of damages to be awarded by the consumers courts has been placed by the law provided in S. 4, 10, 13 & 15 of PCP Act by declaring that the manufacturer or service provider shall be liable to a consumer for damages proximately caused by anticipated use of the product or provision of services that have caused damage but he shall not be liable for any damages except a return of the consideration or a part thereof and the costs in such cases where the consumer has not suffered any damage from the provision of service except lack of benefit or loss of utility as such I find that the claimant is not entitled to the recovery of the damages or compensation or litigation charges.
20. As far as the entitlement of the claimant is concerned, I find that the same is limited by the law of consumers to the extent of the replacement of the LCD with the clarification that if the similar type of LCD is not available then the claimant may purchase any other article of equal value or return of sale price including repair charges amounting to Rs.5,100/- while the complaint is liable to be dismissed to the extent of the recovery of damages and litigation charges.
21. In accordance with above findings, the complaint is partly accepted to the extent of the replacement of the LCD with the clarification that if the similar type of LCD is not available then the claimant may purchase any other article of equal value or return of sale price including repair charges amounting to Rs.5,100/- while the complaint is dismissed to the extent of the recovery of damages and litigation charges.
22. Parties are left to bear their own costs.
23. This order would become final u/s 34 of PCP Act 2005, if the appeal is not preferred within period of 30 days under S.33 of PCP Act 2005 & Rule 18 of PCP Rules 2009 in accordance with the Rules of Procedure of Honourable High Court.
24. In case of delay in compliance, the claimant is entitled to get the order implemented by filing the application for implementation with reference to S.31, 32 & 36 of PCP Act, 2005, if so required with the warning to the defendants that the costs to be incurred for and during the application for implementation would be liable to be recovered from them.
25. The file of this complaint is directed to be consigned to the record room of this court duly page marked with proper index and after due completion and made available for issuance of attested copies and kept under safe custody till the period fixed for destruction in accordance with the Rules & Orders of Honourable Lahore High Court.